Bay Area Divorce Lawyer Blog
If you’ve previously read this blog, you may already know that we generally advise divorcing spouses to avoid the court system as much as possible and to strongly consider alternatives to traditional divorce litigation, including mediation and collaborative divorce. A recent case out of California’s Fourth District Court of Appeals is a good reminder of one of the major drawbacks of the traditional system: the significant possibility for unreasonable delay and improper judgments.
In this particular case, the spouses’ divorce was assigned to a court commissioner. Since the judiciary is flooded with work, the powers that be have devised a system in which non-judge commissioners act as “temporary judges” to hold hearings and render decisions in divorce and other matters. However, this particular commissioner was not qualified to render a decision.
Husband and Wife divorced in 2004 and entered into a marital settlement agreement in which the couple agreed to split child care and health care expenses for their children, and Husband pledged to pay child support on a sliding scale that eventually increased to more than $800 per month. In March 2011, the San Diego Department of Child Support Services levied money from Husband’s bank account for unpaid support and filed two motions against him: one seeking to modify the payments and require Husband to look for a job and the other asking a court to determine the amount that he owed Wife in past due support payments.
Husband and Wife also filed their own motions, Husband seeking to reduce the payments to zero and Wife asking for an order requiring Husband to pay support arrears, sanctions, and attorney fees. The commissioner assigned to the case found that the agreement required Husband to pay either $800 or half of the actual child and health care costs. The court also ordered Husband to start paying Wife $2,229 per month beginning in November 2011 and that the payments be reduced to $1,317 per month beginning in August 2012.
The commissioner denied Husband’s two separate requests for her to be disqualified during the proceedings. The commissioner said in response to the first request that Husband failed to state adequate grounds for disqualification. In response to the second request, the commissioner said she would not entertain it. This, the Fourth District later explained, was a mistake. “This case presents a harsh reminder of the severe consequences that may result from a judicial officer’s failure to properly handle a statement of disqualification,” the Court said.
The Court said the filing of a disqualification motion automatically limits a commissioner’s authority to act until the motion is resolved. The commissioner’s options are to select another temporary judge to take his or her place, strike the motion as untimely or for failure to provide grounds for disqualification, consent to the disqualification, or file an answer to the disqualification. “The commissioner in this case did not take any of the permissible actions in response to [Husband]’s second statement of disqualification,” the Court observed. “Instead, the commissioner impermissibly ignored the statement by declining to entertain it.” By doing so, the Court said the commissioner effectively consented to the disqualification.
As a result, the Court said the child support order entered after the second disqualification motion was filed was void. It remanded the case back to a superior court for further proceedings. In other words, the spouses wasted their time and money in the commissioner proceedings, only to be told to go back to court for more proceedings on the child support issue. It would have been far better to sit down with a mediator from the outset and figure out a reasonable resolution.
If you’re considering a divorce in California or facing support and custody issues after a divorce, it is imperative that you seek the advice and counsel of an experienced family law attorney. With offices throughout the Bay Area, California divorce lawyer Lorna Jaynes provides innovative legal tools to resolve family law disputes without the bitterness and acrimony engendered by the adversarial process.
Related blog posts:
When Divorce Might Be The Right Choice
Time to Consider Giving Up on the Family Court System and Use a Private Judge